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The International Cooperation Group
Publications
The French Revolution and the organization of justice
INTRODUCTION
Of all the institutions of the Old Regime, the justice system was criticized
the most harshly and the most justifiably.
French justice under the Old Regime was marked by the large number of
courts, the overlapping of their jurisdictions, the slowness and the
cost of proceedings, the harshness of the criminal procedure, the cruelty
of the punishments and the severity of the sentences for ordinary people,
a severity that contrasted with the extreme clemency shown to the privileged
classes. There was generally little love for judges and prosecutors,
due to the fact that they defended a system that favoured their own interests
but which the majority of people rejected. Only lawyers drawn from the
middle or the lower bourgeoisie acknowledged the need for judicial reform.
A violent campaign in favour of reorganizing the justice system had
convulsed the country since 1760. Montesquieu had earlier addressed
strong criticisms against the organization of the judiciary. But it was
Voltaire who in his writings brought the most violent blows against the
judicial edifice of the Old Regime. Moreover, the movement for reform
was not exclusively French. Even the most important works in favour of
the reorganization of the judiciary were published abroad, in England
and Italy. Thus, Beccaria's treatise On Crimes and Punishments was
published in Italian in 1764 before being translated into French in
1766.
Following this campaign, the royal power carried out an initial reform
in abolishing the "preparatory question" (question préparatoire)
on 24 August 1780. This was a form of torture that accused persons were
forced to undergo in order to extract confessions from them. However,
the "preliminary question" (question préalable) – a
form of torture designed to obtain from those who had been convicted
the names of their accomplices – continued to exist, as did many
other criminal law practices that seem unworthy of the Age of Enlightenment.
In 1788, in a final attempt by the Old Regime to reform itself, Lamoignon,
the Keeper of the Seals, brought in several improvements to criminal
procedure: interrogation on the accused's stool (sur la sellette)
was abolished; judgments of the sovereign courts henceforth had to be
supported with reasons; and the preliminary question (question préalable)
was also finally abolished. Accused who won acquittal were now required
to be compensated for their imprisonment. In reality, however, this edict
was not implemented. Nevertheless, the courts themselves were taking
account of their increasing unpopularity. They thus attempted to make
some gestures toward public opinion. The court of the Châtelet
in Paris inquired among lawyers on the reforms to introduce to the justice
system, the high judicial court (Parlement) of Paris established
a committee to study reform of the justice system, and lawyers in Marseille
drafted a program for the reorganization of the justice system.
However, these projects were very timid in light of the multitude of
complaints and projects to be found in the records of the Estates General
of 1789. The wishes expressed in these records relate to the general
organization of the justice system; others relate more specifically to
criminal justice; and yet others refer only to civil justice. In the
case of criminal justice, there were many projects based on the large
numbers of works on the subject published in the preceding years. The
records demand serious guarantees of individual liberty and request that
no individual should be arrested or forced to appear before a judge,
except when the individual was caught in flagrante delicto or
identified by public outcry, and that any individual who was arrested
be examined within twenty-four hours. The records also demand that all
accused be assisted by counsel designated by the authorities or selected
by the accused, that accused persons not be required to swear an oath,
that the hearing of and judgment in criminal cases be public and that
reasons be given for judgments with a precise reference to the laws relied
upon. Naturally, the records also demand the abolition of torture, the
moderation of sentences to make them proportionate to the offences and
the elimination of barbaric forms of torture that had been added to the
death penalty. They also demand that the conviction of an individual
no longer involve dishonouring all his relatives and that prisons be
improved, underground dungeons be abolished and interrogation on the
accused's stool be abolished. Thus, the records contained a full program
of criminal legislation.
It was during its first sittings that the Constituent National Assembly
decided to give France a new judicial organization. On 17 August 1789,
Nicolas Bergasse presented on behalf of the Committee on the Constitution
a report on what he called the "judicial power." After summarizing
the complaints echoed in the records of the Estates General, he proposed
a new organization of the justice system on the following basis:
a justice of the peace in each canton, intermediate courts, a court of
justice
for each province and the abolition of courts of exception. He demanded
guarantees of individual liberty on the model of the British habeas
corpus, the publication of accusations and proceedings, the introduction
of juries, less harsh sentences and improvements in policing. However,
the Assembly was at that time debating the Declaration of the Rights
of Man. It postponed the Bergasse project after noting its main principles,
which it enshrined in articles 7, 8 and 9 of the Declaration of the Rights
of Man.
On 10 September 1789, at the express request of the Paris Commune, the
Constituent Assembly instructed a seven-member commission to submit a
proposal for the immediate reform of the criminal law. Jacques Guillaume
Thouret was appointed chairman of the commission. The report was adopted
more or less in its entirety and became law on 10 October 1789. The law
in question established a whole series of provisional measures designed
to increase protection for accused persons. Prominent citizens were
immediately assigned to the judges in each town. Every accused was required
to be brought before a judge within twenty-four hours. Judgments were
rendered publicly. Accused persons were assisted by a lawyer, not only
during the judgment but also during all the proceedings. Interrogation
on the accused's stool, the tortures of the preparatory and preliminary
questions, the oath that the accused were required to swear were naturally
abolished. The Constituent Assembly supplemented these provisional measures
again when it decided on 21 January 1790, on a motion by Dr. Joseph Ignace
Guillotin, that the same offences should be punished by the same sentences,
that these sentences would not have any consequences for the families
of those convicted, that property could not be ordered to be seized and
that the bodies of those who had been tortured would be handed over to
their families, if the families so requested, for regular burial.
During this period, the Constituent Assembly drafted projects for the
complete reform of the organization of the courts. On 24 March 1790,
the Assembly decided that the judicial apparatus should be completely
restructured and began at once to discuss three main projects, those
proposed by Thouret, Adrien Duport and Sieyès. The law of 16 August
1790 respecting the reorganization of the justice system in general
and especially the civil justice system, contained the essence of the
Constituent Assembly's work relating to the courts. It was supplemented
by a number of other laws, including that dated 16 September 1791 on
criminal justice, and by the Penal Code dated 25 September 1791.
Some of the interventions made by Bergasse, Duport and Thouret on the
reform of the justice system remain relevant to this day in many respects.
Yet, despite their undoubted importance, these texts are known only to
a few specialists and have not been translated into English. It therefore
seemed useful to make them accessible to a much wider number. We therefore
publish here, in French and in English, reflections whose interest has
not been eroded by the passage of time.
Publications
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